State of the Judiciary 2011

Only months after voters ousted three Iowa Supreme Court Justices from the bench, a newly mentored Chief Justice addresses Iowans. In one of the most tumultuous periods in the history of the Iowa Supreme Court, Chief Justice Mark Cady outlines the challenges and path forward for the state's judicial branch. From a joint session of the Iowa General Assembly at the State Capitol in Des Moines, this is the 2011 State of the Judiciary.

Dean Borg: Hello. I'm Dean Borg. This is the House of Representatives Chamber at the Iowa Statehouse where members of the House and Senate are now convened in joint session to hear the newly chosen Chief Justice of the Iowa Supreme Court Mark Cady deliver the State of the Judiciary Address. Most Iowans are familiar with the governor's annual Condition of the State Address but the Judiciary Address usually doesn't get the same attention. But these aren't normal times for the court. Normally seven Supreme Court justices would be here today but there are three vacancies because the majority of voters in last November's election decided against retaining Justices Ternus, Streit and Baker. New Chief Justice Mark Cady is virtually unknown to most Iowans. Perhaps that is part of his challenge today, not so much his identity but that of the Iowa Supreme Court and its role in state government. Even more so as incoming Governor Terry Branstad appoints three new justices.

Now, even if those vacancies are filled in a timely manner uncertainty remains for a court pressured by conservative activists such as Bob Vander Plaats to resign or face potential impeachment proceedings here in the Iowa legislature. Much of the conservative backlash against the Iowa Supreme Court stems from the courts unanimous decision in what is called the Varnum case declaring Iowa's law defining marriage as only between heterosexuals as unconstitutional. I've seen an advanced copy of Justice Cady's speech and we expect him to directly address that decision today.

It is my pleasure to introduce to you the distinguished Chief Justice of the Iowa Supreme Court Mark S. Cady to deliver the State of the Judiciary message.

Chief Justice Mark Cady: Thank you. President Kibbie, Speaker Paulsen, members of this distinguished General Assembly, Governor Culver, Lieutenant Governor Judge, my colleagues, family, friends, all Iowans, I thank you very much for the warm reception and I want to assure you that it is received as much in the same manner that it is given. I also want to thank President Kibbie and Speaker Paulsen for inviting me here this morning to address you on the condition of the third branch of government in the state of Iowa. But before I begin I simply want to invite all of you to join our judicial branch and me for a reception in our historic courtroom located right below these chambers immediately following my remarks.

Seventeen decades have come and gone since Iowa first became a territory and then a state and I try part government, our constitutional form of government was created by our forefathers with hope and confidence that we would be led into this uncertainty in our future. The hope then, as it remains today, was that government in each decade would allow us to move forward to a brighter future for all Iowans. The pursuit of this hope is collectively told by the many stories that have emerged from our courthouses over the decades, stories that become pieces of the mosaic of today's understanding of justice and equality promised by our forefathers in our Constitution.

These celebrated stories tell the history of our struggles to achieve our promised goals and many are familiar to you. But other stories, not such grand stories or such recognized stories, but important nevertheless, that these stories tell why, why our government system and our judicial system work so well to serve Iowans so well. Let me just briefly tell you one such story.

Last fall I stopped by the Winneshiek County Courthouse and I stepped in the Clerk of Court office. I met with the clerk of court and her three staff office including Jim Klock. Kim told me that he began working in the office in 1983. He had considered it to be an honor to be a part of Iowa's system of justice. Over the years he observed the duties of the office have skyrocketed and the number of cases that he needs to process have soared yet the number of employees in the office have remained the same. He has required his staff and the clerk has required the staff to regularly come into work early, stay late into the evenings and at times come to work on weekends. Now, don't get me wrong, Kim's words were not spoken to complain. He only feared that the crushing workload might lead to mistakes. His concern, you see, was not for himself but for the people who use and depend upon our system of justice.

In truth, this simply story can likely be found in every courthouse across Iowa. Our employees, from judges to magistrates, to court reporters, juvenile court officers, clerks, court attendants, law clerks, administrators and other staff believe in what they do and they do it well. As with Kim Glock, they are honored to serve the public and they do it in a way that could not honor the public's system of justice more. The story of our ability to deliver justice to Iowans over the decades, the story of our people, shows our job will be done regardless of the cards we are dealt. But there is no doubt that our mission, more and more, is getting harder and harder to achieve. I too fear that the deep cuts in our resources are beginning to cause damage to our system of justice. So, let me briefly explain by beginning with what I observe to be a decline in the access of justice in Iowa.

Iowans can not have the hope of justice without having access to justice. The grim reality is that more and more Iowans with legal problems are forced to wait too long for their day in court. These problems are troublesome for litigants and they shake people's confidence in our government. And these problems result from a decade of fiscal austerity coupled with Iowans' growing demand for our legal services. The situation is not new and has been raised in the past and thankfully you and the Governor responded to our concerns last year and provided sufficient funds to prevent further cuts, layoffs and furloughs. We are grateful for this action but like a thumb in the dyke the action was merely a temporary fix. It did not halt and has not halted the continued erosion of court services.

For example, in the past year the number of clerk's offices that have been forced to operate on a part-time basis has increased from twenty-six to thirty. Staff reductions are so severe that at times some of these offices have to close their doors due to unanticipated absence of employees. Now, the remaining clerk of court offices around the state do operate a full day but they are even closed to the public for four hours a week to give our employees periods of time uninterrupted by the public so that they can pare down the workload. Also, judicial rulings at times are delayed because of the lack of clerical support and court reporters. Let me briefly review how we got to this critical juncture.

From 2001 to 2009 in response to the state's fiscal problems the judicial branch, like the other components of state government, had to cut its budget. During those times the judicial cut of its budget occurred five times and each time the cuts were deep. Like many state agencies -- unlike many state agencies our cuts are almost all operating costs because we operate on people, our employees and our judges. This means that we're almost always required to further reduce our workload when we must further receive cuts. The end result is this -- our staffing levels have dropped a staggering seventeen percent in the last decade. Today, Iowa's court system operates with a smaller workforce than it had in 1987. Now, in contrast, over the same period of time the total number of actions brought by Iowans and Iowa businesses has nearly doubled. In short, Iowa courts are overrun with work and Iowans are paying the price of a reduced access to justice.

Our ability to deliver court services and resolve litigation to the extent that we do is indeed a tribute to the strong work ethic and the spirit of our judges, magistrate and court staff. Unfortunately, the admirable efforts of our judges and employees can not totally shield Iowans from the effects of the past decade of budget cuts. Now, as we struggle with these obstacles we, nevertheless, have continued to move forward finding innovative ways to improve access to justice. We are testing a system for electronic filing and retrieval of documents. This system, which we call EDMS, expands access to justice beyond our courthouse walls. It enables litigants, lawyers and others to file and access court records online anytime. This saves Iowans cost and the inconvenience of having to travel to the courthouses to conduct some of their business. It gives judges access to records as soon as they are filed. And if everything goes as planned and we have sufficient resources to move ahead we should have EDMS fully implemented in five or six years.

In addition, a statewide task force is now studying measures that will allow civil cases to proceed faster and at less expense to litigants. Our civil justice reform task force is studying innovations such as a dedicated business court, reforms of discovery procedures, expansion of alternative dispute resolution services and other potential improvements. And we hope to have a road map of civil justice reform and innovation later this year.

We want to provide a legal system that responds to the changing needs of society and the demands of our modern age. In the long run, EDMS and civil justice reform will change how we do our jobs and greatly improve Iowans' access to justice. But these changes alone will not give Iowans all the access to justice and the court services that they need. These changes will never fill the shoes of court employees who are essential to the administration of justice throughout Iowa. And at the end of the day, we know that justice requires a personal touch and judgment calls that can not be obtained simply from a computer.

We understand the state's continuing fiscal difficulties and appreciate the very tough decisions that must be made again this year. Even so there are many reasons to bolster court services throughout these difficult times. The recession has placed additional demands on our courts. In the past three years, mortgage foreclosure actions filed in Iowa have increased seventeen percent. Debt collection cases have increased fifteen percent. Child in Need of Assistance cases have increased twenty-three percent. And adult civil commitment hearings have increased nineteen percent. These legal actions may have life altering effects on Iowans and this is not the time to hand our ration cards for justice.

In addition, our work has grown in the past few years as a direct result of cuts and services for needed treatment of abused and neglected children and troubled youth. The following observations from juvenile court officer Paul Thompson of Marshall County I believe best describes the situation. He wrote this, "The front end kids are no longer being served or if they are, not as well. We get these kids later when their problems are more firmly entrenched. The schools and police look to us for help and we are unable to provide much assistance due to the lack of manpower and funds. Due to funding problems, kids sit in detention or shelter way too long while waiting for appropriate residential treatment. It seems we are having less success when they come back from placement. The system is broken and the long-term effects will show up years later down the road."

Similarly, Iowa's fragmented and underfunded mental health system places greater demands on our courts. Because treatment facilities and services are scattered and scarce court staff in many counties often spend hours on the telephone just trying to locate a placement for a person who has been involuntarily committed. These problems, coupled with growth in civil commitment caseload and our staff reductions, call for more resources. Iowa's economic health provides a third reason for you to provide funds to reinforce court services for Iowans. Studies in Florida and in California suggest that a well funded court system contributed to the economic well-being of communities. Widespread case delays, closed offices will add to the cost of doing business in this state and will add to the uncertainties that can inhibit business expansion. A vibrant business community requires a vibrant, fair court system.

We appreciate the continued need for all government including the judicial branch to share in the pain. However, the courts are already stretched painfully thin. I hope that we can all agree Iowans deserve more access to justice than they now have. Our fiscal year 2012 budget request reflects a modest three-year plan to improve Iowans' access to justice. I ask that you give this careful consideration. Now, I have not detailed the fiscal concerns presented to Iowa's courts as I would perhaps under different circumstances because now we face a challenge of a different nature. I feel compelled to address this challenge to you this morning or at least some aspects of it because it threatens to undermine the checks and balances that protect the Constitutional rights of all Iowans.

When the Iowa Supreme Court decided the Varnum v. Brien case on April 3, 2009 we understood it would receive great attention and be subject to much scrutiny. We worked hard to author a written decision to fully explain our reasoning to all Iowans and we understand how Iowans could reach differing opinions about this decision. In many ways the public discourse following any court decision on such a major Constitutional question of civil rights is what was expected if not demanded by our Iowa Constitution. This period of time, the time following such a decision, is what ultimately gives shape to tomorrow's understanding and can help differences of opinion begin to merge.

This discourse is not new for Iowa, although I doubt it has ever been so strong. For sure our court, the Iowa Supreme Court, has many times in the past decided questions involving civil rights that were once controversial yet over time those cases have become a celebrated part of the proud and rich Iowa history of equality for all. (Applause)

I know not how this debate will end but I do know our Constitution will continue to show us the way as born out by our history. The Constitutional work of the court, this court, on this matter is complete and the history, the history will be written one way or the other by your hand and ultimately the hand of the people of Iowa. But to help move forward to write this history I want to address certain misunderstandings about the role of the court in our government. This discussion is done not only to defend our grand system of justice from misunderstandings that threaten to weaken the very fabric and strength but it is done also with hope that my remarks will help redirect the discourse down the path contemplated by our Constitution to help reach the bright and proud future we all seek.

First, I hope to help us move forward by addressing the concerns of some Iowans about our system of selecting judges. Iowa has -- Iowa has the best method in the nation for selecting its judges. This method, known as merit selection, must be maintained today to permit us to move forward to a better tomorrow. Let me just briefly explain how this system works. Iowa's merit selection system was adopted in 1962 through a Constitutional amendment for the purpose of minimizing the influence of politics in the selection of our judges. It works by using an independent commission to screen applicants for judicial office and provide a slate of the best qualified applicants to the governor who then makes the appointment from the list of nominees. There are local commissions to nominate district judges and there is a state commission to nominate Supreme Court Justices and judges of the Court of Appeals. My focus this morning is on the state commission.

The fifteen member state judicial nominating commission is composed of a chair, who is the senior justice of the Supreme Court other than the Chief Justice, seven non-lawyer commissioners appointed by the governor and confirmed by the Iowa Senate and seven lawyer commissioners elected by lawyers licensed to practice law in Iowa. Importantly, the Constitution requires that all commission members be chosen without regard to political affiliation. Likewise, the law specifically requires the commissioners to choose nominees without regard to political affiliation. I understand the non-partisan nature of the judicial nominating commission has been questioned at times, most notably when the political makeup of the membership shifts to a majority of democrats or a majority of republicans. This shift does occur over time but it is much less likely the result of a selection of lawyers to the commission than non-lawyers.

Lawyer members are selected on a statewide vote of all practicing lawyers in the state by a ballot that does not name the political affiliation of the slate of candidates. Lawyers are selected entirely through a non-partisan election process. Non-lawyers on the commission are selected by the governor but even if the governor may predominantly appoint members of the commission that might share his or her party affiliation this does not mean appointments are based on party affiliation. I believe this body came to the same understanding in 1986 when democrats in this chamber was troubled, were troubled by the apparent republican dominate on the commission and proposed legislation to require political balance on all judicial commissions. This approach was rejected and the process remains as it has been for almost 50 years.

The more important point is that political affiliation of a commissioner as a democrat or a republican does not compromise the ability of that person to be dedicated and conscientious about selecting the best and most qualified people to serve as judges in our state. Commissioners are Iowans from all walks of life who care deeply about good government and maintaining Iowa's fair and impartial courts. Over the years, Iowans have served as commissioners very faithfully to the people of this state. They have focused on selecting the most qualified nominees and I have had the privilege of serving as the chair of this commission in recent years and I have seen democrats, republicans and independents work together to fulfill their duty again and again in nominating the best candidates for vacancies on the appellate courts.

A Fort Dodge businessman, Don Decker, a longtime republican who served on the state judicial nominating commission in the 1990s recently told me that when it came to selecting a slate of nominees for judicial position he may have rooted for the home team but he always voted for the most qualified candidate regardless of political affiliation. This assessment captures the reason our process has worked so well for so long. (Applause)

In the final analysis, what really matters is the commitment, the commitment of each commissioner and the governor to the spirit of merit selection and the goal, the goal of maintaining Iowa's fair and impartial courts. Importantly, the selection system has been a true success. For the past decade, surveys conducted for the United States Chamber of Commerce has consistently ranked Iowa judges as the most fair and impartial in the country. Last year, Iowa judges ranked fourth in the nation. In addition, recent academic studies show that the Iowa Supreme Court has grown to be one of the most influential state supreme courts in the country. These studies rank Iowa fourth in the nation in occasions when other state supreme courts rely on our decisions to make their decisions. Our fair and impartial courts are a model of good government and I am confident all Iowans want good government. (Applause)

Yet as we move forward we must not resist changes in the system that could help reinforce public confidence in it. I believe public confidence in the merit selection can be enhanced if the nominating process is made more transparent. The court is pleased that the state judicial nominating commission has decided to allow the public to observe its interviews of applicants later this month to the Iowa Supreme Court. This is a positive step. In addition to opening interviews to the public, we recommend that state and district nominating commissions adopt uniform rules of procedures, a code of ethics and procedures for the release of more information to the public. Shining more light on the nominating process will show that the commissioners do indeed operate as designed by selecting nominations and nominees based upon their professional qualifications and without regard to political affiliation.

Now, let me turn to another misunderstanding related to the function of the court. Two important principles governing the role of courts are the subject of this misunderstanding. The first is the idea that judges, like politicians, should make decisions according to public opinion or consistent with the will of the majority. In our government, courts are legal institutions, not political institutions. When a person comes before a judge, that person expects the judge to be neutral and to render a ruling based on proven facts of the case and the applicable legal principles, not based on public opinion. Public opinion shifts, the will of the people followed by courts is the will expressed in our law as constrained by the written principles in the Constitution. (Applause)

If this were any other way -- if this were any other way why a Constitution? When asked, judges must apply these principles according to law equally to all. This principles is captured in our oath of office. It is also written into our code of ethics, a code of ethics that is modeled after national standards, that all judges make decisions without being swayed by public clamber or fear of criticism. If it were otherwise, the rule of law would surely be compromised as would our Constitution. Unlike our political institutions, courts serve the law, the serve the law, not the interests of constituents, not the demands of special interest groups and not the electorate's reaction to a particular court decision. (Applause)

By serving that law, courts protect the civil, political, economic and social rights of all citizens. Chief Justice William Rehnquist called the independence that allows judges to serve the law the crown jewel of our system of justice. I hope we can go forward with that same understanding.

The other principle I wish to address is the authority and the duty of courts to uphold the Constitution by declaring statutes or parts of statutes invalid if found to violate that Constitution. Iowa's Constitution declares that all laws contrary to the Constitution are void. Clearly, our founders anticipated the possibility that legislators could, at times, approve laws that might conflict with the Constitution. Yet at all times they made it clear that the words used in the Constitution to define our rights constrain all laws that would follow. (Applause)

Upholding the Constitution is one of the most important functions of courts. It is the duty of courts to review the constitutionality of laws and this is known as judicial review, it is one of our basic, most basic responsibilities. Judicial review has been recognized as responsibility of the courts in this country for well over 200 years. This duty is well documented and it has played an important role in our country throughout its history. Alexander Hamilton, one of the three authors of the Federalist Papers, which is considered one of the best explanations of the Constitution and the intent of its framers said in one of the essays, Federal of '78, which was written in the 1970s to help all Americans understand the new proposed Constitution wrote, the courts were designed to be the intermediate body between the people and the legislature, to keep the latter, the legislature, within the limits assigned to their authority. The interpretation of law is within the proper and peculiar province of the courts.

Any question about the power of courts to review the constitutionality of a statute was settled in 1803 by the United States Supreme Court case, a landmark case of Marbury v. Madison, the court found a portion of federal law, the judiciary act of 1789 unconstitutional and thus invalid. As Chief Justice Marshall explained in Marbury it is emphatically the province of the judicial branch to say what the law is and Marshall referred to judicial review as the essence of judicial duty. This same principle has always held true in Iowa. In 1849, the Iowa Supreme Court issued its first decision that protected the constitutional rights of an Iowan by invalidating a statute enacted by the legislature. In this case, the court stated that it was a well settled principle of this country that courts have the power, as a matter of right and duty, to declare every act of the legislature made in violation of the Constitution or any provision of it null and void. This is the very duty this court exercised in the Varnum decision. (Applause)

Judicial review is so commonplace that since 1846 litigants in Iowa in roughly 1,000 cases have asked the Iowa Supreme Court to protect their constitutional rights by invalidating a state law. During this same period of time the court has declared acts of the legislature unconstitutional just over 150 times. Unlike the Varnum decision, most of these case decisions have received little attention. But the lack of attention does not diminish the strength and the importance of the principle that is at stake. Federal court cases exercising judicial review also provide good examples of important and accepted role of judicial review because they typically attract greater public attention. For instance, most of you have heard of the 1954 U.S. Supreme Court case of Brown v. the Board of Education, which the courts struck down segregated schools as violation of the Equal Protection Clause. You may also be familiar with the more recent U.S. Supreme Court case known as Citizens United in which the court invalidated a federal campaign finance law to protect the First Amendment rights of corporations. In both cases the court found that particular acts of the legislative branch violated the Constitution and those laws were then voided by the court. In both cases the court performed its duty under the Constitution.

In short, historical evidence, legal precedence, support the authority of courts to invalidate statutes that are in violation of the Constitution. I hope my remarks this morning will help us lead to a more accurate and complete understanding of the court's proper constitutional role. At this point, it brings me to another related misconception about our courts and I'll address this just very briefly.

The notion that the court should suspend its ruling to give the legislature time to act on an unconstitutional statute -- as far back as 1883 the Iowa Supreme Court made it clear that even unpopular rulings could not simply be suspended in time to await any future action. In its decision the court said, if courts could be coerced by popular majorities to disregard the Constitution at any point in time Constitutions would become mere ropes of sand and there would be an end of constitutional freedom. As we said in Varnum, our Constitution speaks with principle and so do we. (Applause)

Lastly, it is my hope that we can move forward with a shared commitment for a greater understanding of our courts and their commitment to the role of maintaining our democracy. This understanding can best be achieved by making our courts even more transparent. I am confident that the more people see of their court system, of their court system, the more they see this court system operate, the more the public will view the court system with confidence. In truth, Iowa courts adopted an openness standard long before the word transparency even surfaced in our lexicon. As a general proposition, courthouse doors have always been open to the public, judges have always taken the time to explain their court decisions in writing yet the circumstances of the last few months have shown us that this is the time to expand our openness even more.

Now, Iowa has actually been a leader in making the work of the courts more transparent. Iowa was one of the first jurisdictions in the country to allow courtrooms to have cameras. More recently we have developed a judicial branch Web site to help inform the public of our work. This Web site even allows schools, service groups and others to make online requests for justices and judges to come into your communities to speak. The Web site is user friendly, informative and has been named one of the best Web sites in the nation. It is also used by us to receive input on proposed changes in our rules governing court procedures and up until a year ago, the Web site also provided a video cast of Supreme Court proceedings but this procedure was a victim of our budget cuts. Nevertheless, we can do more to open the work of the courts to the people.

So, today I am pleased to announce that the Iowa Supreme Court plans to hold some of its oral arguments in the communities across Iowa. This will allow interested citizens the opportunity to watch court proceedings and will allow the proceedings to be used as a teaching tool for our youth. (Applause)

We will also consider other ways to open our work to the public and we look forward to maintaining a court system that all Iowans will view with confidence and respect. In the end, we need to get to know each other better. If we can do this, if we can understand each other better we'll be able to forge a better future for all of us. So, let us now go forward, let us go forward with a new understanding, a new understanding that the courts, of the courts and a new understanding of the direction of the courts will lead us into a better and brighter future for all Iowans. Let us go forward to continue to right our history through the stories of the people of Iowa in a way that our children and their children will look back on with pride, the same pride that we can look back on today at the work of those who have preceded us. Let us go forward with the courage found in the past and the courage of the convictions of our Constitution. Let us go forward with greater openness, not only in the way that we all do our work, but in what we know and what we understand today about each other and the world around us. And let us too go forward with a new understanding that rhetoric does have meaning and with an understanding that rhetoric must be responsible. (Applause)

I began my remarks by mentioning the stories of our past and those of today, one story that explained the strength of our judicial operation and the other celebrated stories that have operated to create the strength and greatness of our state. All of these stories define our past, empower us today and give us promise for tomorrow. So, let me end my remarks by asking all branches of government and all people to go forward, to go forward together, to transform the promise given to us into our proud legacy. The story that is not yet told will be our story. Let us go forward to right this untold story with greater understanding of our government, of ourselves and of all Iowans. Thank you. (Applause)

Dean Borg: Justice Cady getting a standing ovation among the people here in this House of Representatives Chamber at the Iowa legislature having delivered what probably, in my estimation, is going to go down as a landmark speech, a strong defense of Iowa's court system, a lesson in government and the role of the court system at this time when the Iowa Supreme court is under duress both in budgets as the speech, in its early stages, outlined but also under duress with an understanding of the role of the court, particularly following the ruling on the Varnum case and Chief Justice Cady spent considerable time today talking about that case, not the merits of the case itself but about the fallout and the role of the court constitutionally in performing its role. He was interrupted by applause several times, not all members of the Iowa legislature stood to applaud during that time because there is a deep division among the members of the legislature.

Justice Cady now going among the Supreme Court Justices, the four who remain on the court and the U.S., not the U.S. but the Iowa Court of Appeals. He is with his family there now, embracing. Being escorted now to cheers and those cheers are coming not so much from the floor here, the assembled legislators but from those in the gallery and as was the case yesterday when Governor Chet Culver addressed this chamber, the cheers and whistles and exuberant applause came mostly from the gallery where members of the gay rights group, One Iowa, were assembled.

Well, this concludes the 2011 State of the Judiciary Address. You can watch Chief Justice Cady's address online at our Web site, iptv.org. And stay with Iowa Public Television for more political programming as the week rolls on. On Friday, Iowa's new Governor Terry Branstad takes the oath of office at 9:00 in the morning. You'll be seeing it live on our World .3 channel, rebroadcast at 8:30 Friday night on statewide Iowa Public Television's main channel. It's one of our busiest political weeks of the year, we hope you'll be watching. And, of course, that brings us to Iowa Press. On Friday, we'll be questioning a key member of the Iowa Judicial Branch, the man who just spoke to us moments ago. You'll see Iowa Supreme Court Chief Justice Mark Cady at the usual Iowa Press times, 7:30 Friday night and 11:30 Sunday morning. From the Iowa Statehouse in Des Moines, I'm Dean Borg. Thanks for joining us today.